Advance-Rumely Thresher Company v. Nelson

• Decision Date: 08 November 1919
• Docket Number: 22,310
• Citation: 184 P. 982,105 Kan. 517
• Parties: ADVANCE-RUMELY THRESHER COMPANY, Appellant, v. J. M. NELSON et al., Partners, etc., Appellees
• Court: Kansas Supreme Court

184 P. 982

105 Kan. 517

ADVANCE-RUMELY THRESHER COMPANY, Appellant, v. J. M. NELSON et al., Partners, etc., Appellees

No. 22,310

Supreme Court of Kansas

November 8, 1919

Decided July, 1919.

Appeal from McPherson district court; FRANK F. PRIGG, judge.

Reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. SALE--Silage Cutter--Written Contract--No Implied Warranty as to Fitness. Where the written terms of a dealer's contract and order provided that a machine which was sold thereunder was expressly warranted to do good work when properly set up and adjusted, an issue cannot be raised on an alleged implied warranty touching the fitness of the machine for the use to which it was designed.

2. SAME--No Implied Warranty--Answer States No Defense. The allegations pleaded in an answer to a petition in an action for the agreed price of a silage cutter sold to defendants who were dealers in farming machinery, examined, and held to state no defense; and also held, that plaintiff was entitled to judgment on the pleadings.

C. E. Freeman, of Topeka, for the appellant.

G. F. Grattan, and J. M. Grattan, both of McPherson, for the appellee.

OPINION

DAWSON, J.:

The plaintiff sued the defendants for the contract price of a silage cutter. Its motion for judgment on defendant's answer being overruled, the correctness of that ruling is brought here for review.

Plaintiff's petition recited the pertinent facts touching the dealer's contract and order, the delivery of the silage cutter, and defendants' failure to pay. The written contract was attached to the petition. Among its recitals, it was provided:

"The within named goods are warranted to be made of good material and to do good work when properly set up and adjusted. If any parts prove defective, the seller will have the right to replace them, and no goods are to be condemned on account of such defect if properly made good.

"Purchaser agrees to examine all goods on arrival and notify the seller of any shortage or defective parts and give reasonable time to replace them, or the seller is not to be held responsible for any shortage or defective parts. . . .

"Any defective parts may be charged back to us, but in all such cases the broken or defective parts must be exhibited at settlement to the authorized agent of said company, who shall return them to the Branch House, and all claims for defective parts must be made during the first season's use."

Defendants answered that they were retail dealers of implements; that the plaintiff's traveling salesman sold them the silage cutter by description and without a sample; that it was a condition precedent that the cutter should be salable or merchantable, and that it was so warranted by plaintiff; that it was not salable or merchantable; that defendants did not accept the goods and no delivery has been made to defendants and that they were not indebted to plaintiff under the contract; that defendants were ignorant of the silage cutter and its construction, and did trust to the plaintiff's judgment that the cutter was reasonably fit for the use and purpose of a silage cutter; that the cutter was so poor and weak in construction in the foundation that supports the cutter that it is dangerous to life and property, and prospective buyers would not buy it, nor could the defendants safely sell it and be exempt from damages when it was not reasonably safe for use; that by reason thereof the implied warranty (of its fitness for sale and use) was...